England, Wales and Scotland have reached a point where their legal frameworks for protecting the rights of adults who lack the capacity to make decisions about their own care are in urgent need of reform if they are to protect the rights of the most vulnerable people in society in the future. As the countries work on updating their systems for protecting people, particularly those with a learning disability or dementia, it is worth looking at their progress so far. Any plans for legal reform, though, will depend on the political will of the governments to fund and implement change in the present climate of political uncertainty.

England and Wales share the same legal framework for applying for the deprivation of liberty of adults with incapacity, which has been criticised for being cumbersome, bureaucratic and opaque. Scotland has the oldest legal framework, established in 2000, and in Northern Ireland decision making is governed by common law.

The Mental Capacity Act 2005 (MCA), in force in England and Wales since 2007, applies to people such as care home assistants, domiciliary care workers and others who have been contracted to provide a service to people who lack the capacity to consent to that service.

The MCA was amended to contain the Deprivation of Liberty Safeguards (DoLS), which came into force in 2009 and were designed to protect adults who lack capacity but were compliant with their care in care homes and hospitals, as they could be considered to be deprived of their liberty under Article 5 of the European Convention on Human Rights (ECHR).

A consultation resulting in the introduction of the DoLS came about in the UK following the decision of the European Court of Human Rights in the “Bournewood” case, which ruled a deprivation of liberty under Article 5 of the ECHR of a person with severe autism and challenging behaviour. This conflicted with a House of Lords judgment on the person’s unlawful detention in hospital under English common law, which found the person was not deprived because he was “compliant” with his placement.

Other cases have lowered the threshold for what constitutes a deprivation of liberty in care. The Supreme Court judgment in the cases of P v Cheshire West and Chester Council and P&Q v Surrey County Council in 2014 ruled that all people who lack the capacity to make decisions about their care and residence and, under the responsibility of the state, subject to continuous supervision and control and lack the option to leave their care setting, are deprived of their liberty under the ECHR’s Article 5, even if the care is appropriate and they are not objecting to it. It makes a legal process necessary to authorise that deprivation of liberty. The Supreme Court also clarified that such a deprivation of liberty would apply in a domestic setting as well as in health or social care placements. This has triggered a ten-fold rise in cases requiring legal authorisation.

In the wake of this ruling, the Government asked the Law Commission to review legal frameworks for authorising deprivation of liberty in England and Wales. The proposals, put out for consultation on 7 July 2015, set out a replacement system for the DoLS that was simpler for professionals to use, without compromising human rights protections.

The proposed umbrella framework, provisionally called “protective care”, covered care homes, hospitals, supported living, shared lives and domestic settings, with the nature and extent of safeguards offered varying according to the setting and level of restrictions proposed.

It included a “supportive” scheme, and a more “restrictive” scheme that contained an extra layer of safeguards, including strengthened rights of appeal through a tribunal system, and provided the legal authority to deprive a person of his or her liberty. Unlike the DoLS, it would also apply in community settings. To oversee this, a new approved mental capacity professional (AMCP) role would be created.

The Department of Health’s (DH’s) response of December 2015 to the consultation raised concerns that such a legal framework would be “unnecessarily” complex and costly to deliver.

The Law Commission acknowledged “financial pressures weighed heavily on the minds of consultees” and, on 25 May 2016, published an Interim Statement announcing a very stripped back version of the original proposals that focused solely on authorising deprivation of liberty, abandoning plans for a wider “supportive care” scheme. Some amendments to the MCA may be proposed, though, to reinforce ECHR concerns.

The pared-down approach has become a single scheme to be applied uniformly across every setting. The proposed role of the AMCP, scrutinising and authorising every case of deprivation of liberty, is lost, as is the current universal role of the best interests assessor (BIA). It is apparent that a proportion of deprivations will have no independent oversight, raising concerns that human rights protections for vulnerable groups could be weakened.

The Law Commission now lags behind Scotland with its aim to publish a final report with recommendations and draft Bill by December 2016. After this, the Government’s consultation process will start but the change in direction raises questions over whether legislative reform will happen at all as the DH decides whether to adopt, reject or amend it.

In Scotland, the regulator, the Mental Welfare Commission (MWC), has been calling for reform to bring in a more flexible system that could reduce the need for families or friends to go to court when loved ones are unable to protect their own interests. It believes that the current system in Scotland, like that in England and Wales, is too expensive and bureaucratic and that the law has now become a victim of its own success.

Having said that, the Scots legislative framework has been called one of the more progressive approaches to human rights in the world. The Adults with Incapacity (Scotland) Act 2000 brought about major reform concerning adults with incapacity, it set out the arrangements for applications to be made to the court for an order appointing a person or office holder as “guardian” in relation to a person’s property, financial affairs and personal welfare, and supports their families and carers.

Local authorities have a duty to supervise all welfare guardians and to visit them and the adult at regular intervals as well as to make an application for welfare guardianship where it is needed and nobody else is doing so. The MWC plays a role in making sure that welfare guardianship works in a person’s best interest and in line with the principles of the Act.

Together with the Mental Health Act (Care and Treatment) (Scotland) 2003 and the Adult Support and Protection (Scotland) Act 2007 more rights have been given to patients and more protections from ill-treatment set out.

When the Mental Health (Scotland) Act 2015 was passed, to be fully implemented by September 2016 and which provides a further focus for enhancing and strengthening the support around involvement and safeguarding for individuals, MWC Chief Executive Colin McKay concluded: “We can be proud of our mental health legislation, which is among the most progressive in the world, but we need to be vigilant to ensure we continue to focus on the human rights of some of the most vulnerable people in our society.”

Scottish Law Society (SLS) Mental Health and Disability Committee Convener Adrian Ward also highlighted: “As a matter of urgency, Scotland must improve the efficiency and effectiveness of the operation of the combined jurisdictions resulting from the three separate Acts that are intended to protect adults with incapacity, those with mental health issues and others that need support and protection.”

Colin McKay highlighted the increased use of the courts, with applications for welfare guardianship rising by 84% since 2009 to 2010, putting “unsustainable pressure on local authorities and the legal system”. His analysis reflected the situation in England as he stressed: “But most importantly, it isn’t the best way to protect people with impaired decision-making ability, and to ensure their wishes and welfare are at the centre of the system.”

Scotland has been observing judgments made in English case law and by the European Court, with government bodies now feeling that the implications of these decisions for Scottish law, in terms of human rights, need to be examined.

On 31 March, the Scottish Government closed its consultation on the Scottish Law Commission’s (SLC’s) Report on Adults with Incapacity and accompanying Draft Adults with Incapacity (Scotland) Bill, which proposed amendments to the 2000 Act and the Mental Health (Care and Treatment) (Scotland) Act 2003.

The recommendations made in October 2014, were that the 2000 Act be amended to include a more detailed legal process for the scrutiny of significant restriction of liberty of an adult in a care home or other placement in the community. It proposed a legal process to authorise measures preventing an adult from going out of a hospital, and amendments in legislation to provide for a right to apply to the sheriff court for release of an adult who may lack capacity from unlawful detention in certain care settings.

This would provide for minimum possible intervention in the lives of individuals required “to ensure that the rights and freedoms guaranteed by Article 5 of the ECHR are given their proper effect”.

In response to the consultation, the MWC said the plans would still be expensive, with a “process of professional assessment, application and judicial decision making that is cursory, routine and overly bureaucratic, providing only the semblance of the rights of the individual being protected”.

It is calling for a more flexible system of “graded guardianship” that allows for greater proportionality and efficiency in the use of the legislation and taking account of the UN Convention on the Rights of Disabled Persons. It would include a new role of “supporter” to help the adult to make choices for themselves and ensure their wishes are central to any decisions about them, and a more rigorous process for making decisions about care which may impact on someone’s human rights, such as being under constant supervision in a care home.

The MWC’s response highlighted the fact that the Scottish Government’s consultation failed to address the fact that deprivations of liberty can take place in small domestic places, not just in residential facilities.

The SLS responded to the consultation saying the implementation of the proposals in the draft Bill would result in a substantial increased burden on an already strained resource, adding that any provision that calls on the resources of mental health officers would require additional funding and support to hire, train and retain suitably qualified personnel. The SLS said this must be taken into account in any proposals.

The Scottish Government published its analysis of the responses to the consultation in July, saying decisions will be made over the summer about the next steps to be taken in this area of law. Very soon, it will be evident whether the SLC’s proposals will need strengthening, or scaled back just as the Law Commission’s were to make a new system workable in Scotland, and at what cost to human rights protection for each of the countries.

Last reviewed 27 July 2016